Labor

Unless a union contract or other binding document says otherwise, an employee can ALWAYS be converted from “salaried” (meaning they get paid an incrementally doled out annual salary) to “hourly” (meaning they get paid by the hour).

Employees should never be paid less than the applicable minimum wage unless there is a rock-solid reason to declare them exempt from both minimum wage and overtime laws. So long as an employer is keeping accurate payroll records and paying employees in a timely manner, anyone (whether attorneys, librarians, or dentists) can be paid hourly, so long as they are being paid whatever minimum wage applies.

Okay, thanks for a great question! I—wait, you have a follow-up?

Wow. That sounds so simple! So, what is the big deal about “exempt professionals” and such?

Oh, wow. That’s a much bigger question. I could write a book on that.

But I’ll boil it down to seven short paragraphs:

Depending on their duties and salary, some librarians, museum curators and other highly educated employees can be considered “learned professionals,” “professionals,” “executives,” or “administrators” under federal and state labor laws.

Because some librarian job descriptions and rates of compensation can fall into these categories, there is a myth that ALL of them do. This is simply not true; in New York State, the only way a position can fall into the “exempt” category is for it to meet the requirements for exemption under applicable federal regulations AND applicable state regulations.

The confusion about “professionals” being exempt is not made easier by the fact that the federal government uses the categories “creative professional” and “learned professional” (which both have a minimum salary of $684 dollars per week), while the state government has just one “professional” category (which does not have a salary requirement). Under state law, the work of professional employees must be “of such a character that output produced or the result accomplished cannot be standardized in relation to a given period of time.”

In other words, if a library director is required to be on site for certain hours (say, to open or close the library), the director is not an exempt professional, because an aspect of their work can be “standardized in relation to a given period of time.” This means that such a director could fall into the “executive” or “administrative” category, which both have minimum salaries (at least $1,161.65 per week on and after January 1, 2025, or more for downstate counties).

This baseline salary requirement is why some libraries (especially association libraries) may want to consider paying some librarians hourly, rather than considering them exempt from minimum wage laws.

I appreciate why this might sound-counterintuitive; practically speaking, librarians are without question “professionals,” and librarianship is without question a “profession.” However, as shown above, being a professional doesn’t mean a librarian’s job description will match up with an exempt category under state or federal regulations.

What all this “exempt” and “non-exempt” business is about, at the end of the day, is fairness. If an employee is being compensated fairly (meaning that the money is in line with what people doing similar work under similar circumstances are earning), being paid hourly because your job description doesn't qualify as a professional exempt from minimum wage and overtime laws (state or federal) can be a good thing. It means you cannot be required to work more than 40 hours a week without being paid overtime,[1] which helps set boundaries for a job that truly can never be “done.” Our value is not set by our Department of Labor status.

Thank you for a great question.

As used in this article:

1. “Wages” means the earnings of an employee for labor or services rendered, regardless of whether the amount of earnings is determined on a time, piece, commission or other basis.  The term “wages” also includes benefits or wage supplements as defined in section one hundred ninety-eight-c of this article, except for the purposes of sections one hundred ninety-one and one hundred ninety-two of this article.
2. “Employee” means any person employed for hire by an employer in any employment.
3. “Employer” includes any person, corporation, limited liability company, or association employing any individual in any occupation, industry, trade, business or service.  The term “employer” shall not include a governmental agency.
4. “Manual worker” means a mechanic, workingman or laborer.

 

The care required when addressing union-related issues in so critical, we're going to start with a small cautionary poem:

When employees seek to organize

A good employer must emphasize:

Contract, practice, policy...

If not there, don't intervene.

Why do I have to start this answer with a warning?

When it comes to employees communicating about their working conditions--whether they are in a union, talking about forming a union, or posting notices about union activity--if the activity is not governed by a contract or clearly established policy[1], there should be no effort to limit the activity.  Rather, the director and/or the board should consult the library's lawyer, and make sure you proceed with written advice from them.

This is the only way to safely proceed.

This extreme caution is necessary because: 1) if perceived as seeking to improperly limit communications, an employer can cause immense damage to employee relations in a short period of time; 2) both the National Labor Relations Board and the Public Employee Relations Board (who will handle any disputes, based on the "type" of library[2]), broadly recognize workers' right to organize and communicate regarding workplace conditions and union activity. 

As the member's question alludes to, there are protections in place an employer must honor.  For instance:

If there is an employee break room where pretty much anything can be discussed[3], workplace conditions and union organizing efforts can also be discussed;
If there is a bulletin board where general information can be posted, union-related materials can be posted there;
If employees are allowed to chat about pretty much anything they want as they perform work tasks, discussions of workplace conditions and organizing can't be barred.
These examples sound simple, but in real life, this issue is complex; a long line of cases going back to the 1940's[4] shows that there is an ever-changing balance between what a union and workers can and can't do on company property (and/or on company time).

This complexity is present even when union contract is in place. 

For instance, a union contract may provide something like this clause (taken from a contract posted on the PERB site):

Just as referenced in the member's question, this contract language allows for a "reasonable" use of on-the-clock time to post notices, distribute literature, transmit communications, and consult with representatives on contract issues.  This is a common clause in union contracts, and it is based on prior court decision stating that some access to employer resources may be required for union activity.

But as the member writes: "...how much time is reasonable?"

The only answer I can provide is: there is no right answer except to get a good answer about how to get the right answer.

Or, to add to our cautionary rhyme:

When employees seek to organize

A good employer must emphasize:

Contract, practice, policy...

If not there, don't intervene.

And if something needs more clarity

Ask your lawyer for strategy.

Many contracts, policies, or past practices will list (or have citable past examples of) what is a "reasonable" time for a meeting.  If, however, there is no clear information allowing the parties (the employer and the bargaining unit or employee) to discern what amount of time is "reasonable", the parties will need to discuss it.  For the library (the employer) this means calling in their lawyer to confirm:

 how to raise the issue
with that specific union,
under those precise circumstances, and
at that specific time.
This may sound overly paranoid[5], but sadly, it is not.  Here is 2023, the NLRB keeps back-flipping on precent, and the PERB doesn't have much out there on what "reasonable" means.  This leaves me without any solid precedent or definition to point to (and even in the most stable of times, the interpretation of "reasonable" is highly fact-specific).

Without clear shared understanding between the employer and the unit, a well-crafted legal strategy that considers the big picture is the only responsible[6] way to address union-related concerns, including ones related to union activity on company time. 

Because of this, a board or director who believes it is in the best interests of their library to raise such a concern should proceed only after securing attorney-client privileged legal advice based on a thorough analysis of the contract (or policy), past practice, and the present situation.[7]  The approach (which should be in writing) must be crafted so the outreach doesn't risk the appearance of undue pressure or restrictions on protected activity, and to ensure the parties reach (and document) an articulable understanding that both can rely on with confidence. Ideally, the way the issue should be raised in a way that will reinforce (or create) trusted pathways of communication with bargaining unit leadership. 

This technique will be different for different libraries.  Some will have to consider recent decisions from the NLRB[8], others will have to review decisions from the PERB[9].  Regardless of library "type", the precise contract, relevant policies, past practice, and overall climate and relationship will need to be considered. 

Once a strategy is in motion, if the lines of communication have been positive, the issue may be able to be resolved "at the speed of trust."  If the relationship is hostile or rocky, raising such a concern may result in other matters being brought up, with the worst-case scenario leading to filing a grievance or accusations of a labor law violation. All of this needs to be considered before the employer's position is communicated to the employee[10] or the union.

In fairness to the member who asked the question with the reasonable hope of getting an actual answer[11], I have to say that both the NLRB and the PERB are very fond of the word "reasonable"-- but provide very little guidance as to what the term means.  Looking at NLRB decisions and other authorities, "reasonable" seems to be whatever makes sense to the decision-maker at the time.[12] There just isn't a more reliable answer.

Because of this, what's important is that the employer and the union have clarity about what they jointly agree is "reasonable" and that they use good communication to maintain that understanding over time.

Or to add a final couplet to our poem:

When employees seek to organize

A good employer must emphasize:

Contract, practice, policy...

If not there, don't intervene.

And if something needs more clarity,

Ask your lawyer for strategy.

But most critical to good relations

Are trust and careful communications.

 

May your union-employer relations be smoother than my rhymes!

 
[1] Note that I say "activity", not "communication."  More on this soon.

[2] The PERB will handle libraries that are "public employers", the NLRB will handle the rest.

[3] Except things that are harassing, discriminatory, threatening, etc...

[4] Starting with this case here: https://www.law.cornell.edu/supremecourt/text/324/793

[5] I usually sound so hopeful and encouraging in these columns!

[6] By "responsible", I mean: "less likely to cause a grievance, more likely to foster good relations, less likely to cause needless resentment and panic, more likely to cost less legal fees in the long run." 

[7] This is not the time to call the lawyer you know to get a quick informal opinion.

[8] Found at https://www.nlrb.gov/cases-decisions/decisions

[9] Found at https://perb.ny.gov/nys-perb-board-decisions/

[10] If it is a union matter, don't raise it with the employee, if the contract calls for something else.

[11] Which they clearly haven't gotten, but truly, this is the most responsible way to reply.

[12] Okay, it's not that bad, but still, the flip-flipping out there in Labor Law jurisprudence is de-stabilizing the legal playing field.  If you know an attorney who regularly negotiates union contracts, say "Hey, how about that Caesar's decision?" and you'll likely get a tense smile.  https://www.nlrb.gov/case/28-CA-060841

​

I can offer a simple answer, and a complicated answer. 

Here is the simple answer: 

Per the "COVID-19 Sick Leave Law": 

• The current requirement of a public employer is 14 days of PAID leave for quarantine/absence due to COVID-19.   

• A private employer with under 10 employees must provide unpaid sick leave for the entire period of quarantine, during which time the employee can apply for Paid Family Leave benefits ("PFLA").  

• A private employer with between 11 and 99 employees, or with fewer employees, but at least $1 million in annual revenue, must provide 5 days of paid sick leave, after which the employee can apply for PFLA for whatever time they need to be out. 

• For employers with more than 100 employees, the employer must give 14 days. 

In all instances, the time out for COVID must not count against other accrued sick leave. 

And that's it. 

 

The complicated answer 

As you can see, the obligations under the Covid-19 Paid Sick Leave Law depend on the type and (if private) the size of the employer. 

So, is your library a "public employer?"   

The definition of "public employer" in this law is broader than in many other labor-related laws, so unless your library's HR and employment arrangements are 100% separate from those of the local municipality or sponsoring district, it is wise to consider this applicable (or get it in writing from your lawyer that it isn't). 

Since the library that submitted the question is offering paid sick leave for "most" employees--which means there is a different approach for different employees--it sounds like they have decided the library is not subject to Labor Law 196-b (New York's new "Sick Leave Law"), which applies to only private employers.   

This issue is not an atypical one in New York's "Library land."  Does your library use comp time instead of overtime?  That is an option available only to government employers. Does your library use the federal rather than the state minimum wage?  Only a government employer can do that.  Does your library not have to follow the Wage Theft Prevention Act?  Employers are only exempt if they are a government employer. The list goes on and on.  

[NOTE: A nice exception to this dichotomy is worker's compensation for work-related injury.  EVERYONE has to pay into worker's comp; you could say it is something New York employers all have in common]. 

The bottom line on this "complicated" answer? Make sure your library has clarity about which employment-related laws it decides that apply to it before it implements a COVID-19 Paid Leave policy based on them. And when in doubt, have a lawyer examine the compensation and other aspects of your library's employment arrangements to make the decision that is most consistent with its other employment-related practices. 

Thanks for a great question. And if this "public/private" employer issue has you flummoxed, here is a short poem to help out: 

 

Library Labor Law Chanty 

What law governs at my library?

What labor laws must we abide?

What legal authorities preside?

 

Sorry, there's no simple rule

Be you association, town, or school

But here's a few comforting rhymes

To get you through confusing times:

 

An oath of office is required

When a public library director's hired

Civil service law protects employees

Except at association libraries

 

Must my library pay state minimum wage?

YES (unless only the FLSA is your gauge)

Do we have to pay overtime?

Not if you're municipal AND grant comp time.

 

The new sick leave law pays workers' rent

Unless your (sorta) government

And no matter who gets COVID-19

Employees ALL get paid during quarantine.

 

What if we offer NYS retirement?

Just that doesn't make you government.

But if HR's handled by your municipality

You might just be a public agency.

 

What if there's a union contract?

That can change everything, that's a fact.

And don't forget your HR handbook

Should be based on the "type" of path you took.

 

Yes, there IS legal variety

caused by the "types" of library

But despite inconsistencies

One thing's always true: director hired by trustees.

 

And regardless of type or identity

And despite any support or interdependency

No matter what your answers to the questions three

Your library has... autonomy.

Ooh, an ontological question!

I am not sure about the basis of the past legal input mentioned in the question, differentiating a "policy" from a "handbook," but I (mostly) agree with it.

I (mostly) agree with it because, in both state and federal labor law, the term "policy" is generally used to refer to a stand-alone set of rules governing the terms of employment.[1]  Examples of policies required by law include:

• Sexual Harassment Policy[2]
• Prevention of Airborne Disease[3]
• Whistleblower Policy[4]

In both common usage and in the law, when such policies are gathered together, they become a "Handbook."[5]  Many times, at the advice of lawyers,[6] employers then annually distribute a copy of this "Handbook," and (as in the member's question), require employees to acknowledge it.

The tricky thing is that once an employer has taken the step to pull the policies and create a "handbook" (again, with the name not being important...the important part being that there is some collection of policies, distributed to employees), the law may put additional obligations on the employer regarding the content.

For instance, Labor Law Section 203-e (6), which bars discrimination on the basis of an employee or their family member using reproductive services, states: " An employer that provides an employee handbook to its employees must include in the handbook notice of employee rights and remedies under this section" [emphasis added].  In other words: if the company has no handbook, there is no mandatory inclusion of the notice...but if there IS a "handbook," the notice must be part of it.

The term "handbook," used to mean a collection of employee policies, is also part of the recently passed HERO Act.[7]  It takes the same approach as Labor Law 203-e: if a handbook is handed out to employees, the required Airborne Infectious Disease Plan must be distributed with it (or at least, in the same manner as it is distributed).

Now, for the member's precise scenario: What about when a document that really is just one "personnel policy," but has different sections/rules and a section for the employee to acknowledge receipt?

Based on how the various employment laws in New York use "policy" and "handbook," I feel very comfortable saying that any document that aggregates an employer's rules on more than one topic (say, "progressive discipline," "appropriate attire" and "vacation") and is distributed to employees is--no matter what you call it--a "handbook." 

Or as I have put in this illustrative limerick:

One rule to another said: "Look,

Here's something that has me quite shook

We rules stand alone

In a "policy zone"

But together, we are a handbook!"

Thank you for a chance to do this research and to write this dubious verse about it.

---

[1] Of course, "policy" is also used in other ways in the employment context.  A big example: it is often used in the NY Civil Service Law, which frequently refers to the development of "policy" (meaning governmental positions).  Second, it is used in the context of different types of insurance required of employers (a workers' compensation insurance policy, a paid family leave act policy, a disability insurance policy...etc.). 

Huh.  I have never thought about it before now, but we should really develop some more refined terms for different "policies."

[2] New York Labor Law 201-g

[3] New York Labor Law 218-b, aka the "HERO Act" (for more on that, see Footnote #7.)

[4] New York Not-for-Profit Corporation Law Section 715-b requires this of every not-for-profit that has "twenty or more employees and in the prior fiscal year had annual revenue in excess of one million dollars." 

[5] Or an "Employee Manual" or a "Company Manual" or whatever the employer wants to call it.

[6] The legal bases for why this acknowledgement is advised will vary based on the Handbook/Manual's contents and the employer's industry.

[7] For more on the HERO Act, see "Ask the Lawyer" RAQ here: NY Hero Act and libraries.

This is a very good question, since the use of volunteers to supplement or replace work typically performed by union employees can most definitely be a violation of a collective bargaining agreement.

In one case[1] from 1981, a school district on an "austerity budget" used volunteers to set up (and then clean up) district facilities for student sports--a task typically performed by custodial workers under a collective bargaining agreement ("CBA").  An arbitrator found that the district's use of volunteers to perform the unionized workers' tasks violated the CBA, and the workers were owed pay for the work they should have had the opportunity to perform.[2]

That said, schools, libraries and not-for-profits with unions routinely use volunteers for all sorts of things; clearly, not all use of volunteers risks violation of a CBA.  So, my plain answer to this question is: "yes, if the library is careful."

The rest of this reply sets out what I mean by "careful."

First, any not-for-profit has to exercise caution when using volunteers, because (as the member's question points out) there can be concerns that some use of volunteers violates the labor law.

The NY Department of Labor has really good basic guidance on this at https://dol.ny.gov/system/files/documents/2021/03/p726.pdf

In relevant part, that guidance says:

Unpaid volunteers [at an NFP] may not:

• Replace or augment paid staff to do the work of paid staff

• Do anything but tasks traditionally reserved for volunteers

• Be required to work certain hours

• Be required to perform duties involuntarily

• Be under any contract to hire by any other person or business express or implied

• Be paid for their services (except reimbursement for expenses) 

Considering this guidance, when I work with libraries and other not-for-profit organizations who are considering using volunteers (no matter what the work for the volunteers will be, and whether or not there is a union), I advise that the organization have a volunteer policy. 

The volunteer policy should cover all the concerns raised in the bullets above, as well as address risk factors such as placement letters confirming the terms of volunteer service, safety, insurance, and when a library using volunteers will conduct background checks.

Second, when I work with libraries and other not-for-profit organizations who are considering using volunteers, who also have one or more unions representing their employees, I stress the need to work with the union(s) pro-actively to confirm that an activity performed under the volunteer policy is not regarded as replacing paid/union workers.

There are a number of ways to achieve this confirmation.

The most formal way would be accomplished through a broad exclusion clause in the union contract(s) so every program does not present an ad-hoc task (but that could be a hard thing to fight for at a negotiation).  A sample clause for that could be:

It is understood between the Parties that volunteer service performed per the Library's "Volunteer Policy" to enable events and programs that are not part of the Library's Plan of Service are not regarded as replacing or supplementing union members. 

However, if such a clause is not a part of the standing collective bargaining agreement, a simple exchange of emails, or a more formal signed memorandum addressing only one type of volunteer activity, can be used to confirm this understanding.

The goal in all cases is to have clarity about what service is being performed by the volunteers, and to be able to show an affirmative agreement that it is not negatively impacting the experience of the workers in the union (which risks assertions of breaching the contract).  Since the perception of "negative impact" (and breach) can vary from place to place, this is not an understanding to pursue after-the-fact nor without a solid understanding of the legalities and subtleties of the situation.[3]

Third, even if a union is amendable to it, I would caution a library against using volunteers for any service that is part of a library's Plan of Service, since that can undercut the data needed to support adequate state/local funding.  Volunteers can be invaluable assets, but a library should always be able to function as required by law without them.

Fourth, if all the other cautions and no-no's listed above check out, it is vital to have a very clear agreement with the collaborating organization outlining the nature of the service, and each parties' roles and responsibilities for it.  This ensures the risks and liabilities posed by offering any program to the public are properly balanced, and the library isn't taking risks for the actions of volunteers provided by another organization.  I know it sounds impolite, but when it comes to volunteer services from a third-party, a not-for-profit must look a gift horse in the mouth.[4]

In many ways, it's a new world out there.  For libraries seeking to innovate and work with other organizations to co-produce new programs, the above-listed cautions can set the stage for using volunteers without worrying about violating a union contract.

Thank you for a good question.

 

---

[1] (Onteora Cent. Sch. Dist. v Onteora Non-Teaching Empls. Asso., 79 AD2d 415 [3d Dept 1981])

[2] After the original decision cited in footnote 1, this case takes a lot of twists and turns through different rulings involving the education law and the authority of arbitrators.  But the takeaway for purposes of this answer is: "Yes, use of volunteers can violate a CBA."

[3] For this reason, whenever possible, an attorney who knows the volunteer policy, knows the details about the service to be performed, and knows the union contract, should be consulted in advance.

[4] Of course, libraries and other organizations can host volunteer services (have them on site, but not co-sponsor them) provided by other organizations (such as Literacy Volunteers) without having to worry about these issues quite as deeply.  "Hosting," rather than "collaborating" is a way to work with other organizations (and their volunteers) while not exposing a library to an assertion of violating the labor law, a CBA, or incurring unnecessary liability.

This is a very specific question, during a very specific, difficult time.  So before we delve into the answer, I want to be clear: every library dealing with the human resource considerations of a pandemic response should assemble the following, and be ready to draft a custom approach that takes into consideration:

• Safety policies
• Library bylaws
• Emergency closure and compensation policies
• Employee manual
• Collection Bargaining Agreement(s) (if in place)
• Insurance policy (the section to check specifically is the coverage for business interruption)
• Up-to-the-minute declarations or advisories from relevant authorities and relationships (Center for Disease Control, congressional representatives, Governor, state representatives, County Health Department, Library System, local Civil Service contact, State Library Development rep, payroll service/entity handling payroll)
• Employee Assistance Program (“EAP”) (if relevant)

After examining these resources, some libraries may find they already have “Emergency Closure,” “Quarantine Leave” and even “Pandemic Response” policies that address this question.  They might even find that their library’s EAP program will offer help to employees struggling to find childcare or eldercare.

Still other libraries may find that while they don’t have pandemic-specific policies, their policies for compensation during times of natural disasters or declared states of emergency will apply to this situation—including for part-timers.[1]

And finally, by examining the listed materials and working with the listed resources, a library can position itself to develop new, customized policies for safety (first!) and compensation continuity during a pandemic emergency.  Further, they will be able to coordinate their response with their system and emergency response efforts in their region.

So, with that said, below is the answer to the member’s question, which must be divided into two parts: compensation during emergency closure, and compensation during quarantine.

After that, I include commentary on the roots of the authority you’ll see in the answers.  And finally, I offer a sample policy and resolution for libraries that have no provisions for emergency closure pay and pandemic response, and want to proceed with maximum flexibility as they address this national crisis.

To the greatest extent possible, all of this should be done with the input of the library’s lawyer.

Compensation During Emergency Closure

NOTE:  Before taking any action, check to ensure your library’s collective bargaining agreement, if there is one, does not have a relevant provision regarding compensation during emergency closure.  This is critical.

A policy for compensation continuance during emergency closure is distinct from policies for paid leave (even though some libraries may already use their paid leave policies to address the ability to pay staff during an emergency).  Essentially, the library must identify if it 1) wishes to keep employees on call for their regular or reduced hours, even if the library is closed; and 2) what tasks those people can do, even if it is simply being “on call.

As the members question implies, a library’s provisions for this may vary based on the employment category of the employee (the variables might even go beyond the distinction of “part” and “full” time).

Here is a sample provision enabling this approach as part of an “Emergency Closure Policy” or “Pandemic Response Plan:”

Paid leave during emergency closure

When the library temporarily closes due to a declared state of emergency, and all or some employees are instructed not to come in to work, upon a vote of the board, compensation shall continue as follows:

[insert your library’s employee categories and method of compensation continuation; be careful to insert DURATION and any TIME/AMOUNT LIMIT of pay, and modes of calculation.  For example:

“Full-time staff shall be paid at their regular rate of pay.  Part-time staff shall be paid for their regularly scheduled shifts; for part-time staff with variable schedules, the weekly amount will be based on an average of the last three pay cycles, or as determined by the board.]

To be eligible for compensation during a time of emergency closure or reduced hours, employees must be ready, willing and able to work remotely on projects identified by library leadership during their regularly scheduled working hours, and must complete such duties as assigned.  When performing tasks remotely, employees should note the time worked through the usual process for logging hours.

Because an emergency compensation continuance policy builds on employees’ ability to work remotely, a policy for remote work is a good companion piece to this type of policy.

Libraries should also bear in mind that injuries during remote work can be covered by Workers’ Compensation, and should ensure that any remote-work policy consider how the set up remote working as a safe experience.

Quarantine Leave

“Quarantine leave,” is paid time off during a time of quarantine (which can be imposed, or self-imposed), as a specific policy allows.

NOTE: “Quarantine leave,” is actually always available to state civil service employees.  In fact, at the onset of New York’s Covid-19 response, the Governor declared that all state civil service employees would be eligible for up to two weeks of quarantine leave,[2] regardless of classification, and as of this writing, nationwide coverage for certain private-sector employees is under development. CSEA, the union for public sector civil service workers (including library employees), is posting updates on this, as well, and libraries with CSEA bargaining units should stay attuned to that resource.[3]

How can publicly funded libraries implement Quarantine Leave?

NOTE:  Before taking any action, check to ensure your collective bargaining agreement, if you have one, does not have a relevant provision (chances are it will).

A good model for a “Quarantine Leave Policy” can be found in the state’s civil service law; below is a sample, with some additional language regarding part-time compensation:

If a full or part-time employee who is not personally ill is required to remain absent because of quarantine imposed by a governing authority, or if during a declared emergency an employee determines to self-quarantine and such employee presents a written statement of the attending physician or local health officer proving the necessity of such absence, such employee shall be granted leave with pay for the period of the required absence. Such pay shall cover the employee’s routine hours (part-time hours will be based on an average of the most recent three pay periods, or as set by the board).  Prior to return to duty, such employee may be required to submit a written statement, from the local health officer having jurisdiction, that return to duty will not jeopardize the health of other employees.

To be eligible for compensation during quarantine leave, employees must be ready, willing and able to work remotely on projects identified by library leadership during their regularly scheduled working hours, and must complete such duties as assigned.  When performing tasks remotely, employees should note the time worked through the usual process for logging hours.

Like with all employment policy, this is not something to adopt without a thorough scan of the above-listed documents, to ensure your library has no contradicting bylaws, contracts, policies, or hire letters.

We just want to pay people during a hard time, what could the concerns be?

There are three primary things that can get in the way of simply committing to pay people through a state of emergency: a union contract with set terms regarding emergency pay, concern over “unconstitutional use of public funds”, and budget concerns.

Concern #1: Union contracts

As you’ll note from my many caveats and uses of bold in the sections above, paying attention to a union contract (if your library is a party to one), and working with your local bargaining unit as you craft your pandemic response is a high priority at this time.  A good union will be looking out for their members’ health and well-being—but will also be looking out for failure of the employer to adhere to the current contract.

What happens if your union contract states that part-timers will not get emergency pay for emergency closure or quarantine?  Unless something is changed, in writing, and agreed to with the bargaining unit, OR your library has a “reserve clause” clearly allowing changes in a time of emergency (don’t assume you do unless it has been reviewed and ok’d by your lawyer), your part-timers will not be getting paid.

Contracts with civil service employers in New York can be looked up here: https://perb.ny.gov/nys-perb-collective-bargaining-agreements-a/.  You can see many libraries, large and small, are listed.

I took a quick look and of the libraries I checked, different libraries have different emergency closure pay provisions.  So, what happens at the library over in the next county--even if they are in your system--might not be what can happen at yours.  This is a very careful thing to pay attention to, as it may affect employee well-being and morale.

That said, if leave with pay is barred by a CBA[4], and your board wants to address the issue of quarantine leave and compensation continuity, now is the time to contact your library’s lawyer, and head to the table (or, more properly during this time of sensible social distancing, a teleconference) with the head of your bargaining unit.

I imagine the head of the union will make the time; after all, this is all-hands-on-deck.

If your library isn’t in a collective bargaining agreement, while you have a lot of pressures hitting the current situation, this issue isn’t one of them.

Concern #2: Allegation of improper use of public funds

Article 8, §1 of the New York State Constitution states: “no county, city, town, village or school district shall give or loan any money or property to or in aid of any individual.”  The reach of this clause includes public libraries.[5]

Concern about this clause can be seen in the member’s question; from a certain point of view, paying staff (full or part-time) when they aren’t at the library doing their routine tasks could seem like a “gift.”  After all, the employee is not at work, and they are getting money.  Sounds like they are getting something for nothing, right?

Wrong.  When implemented with careful attention to detail, such emergency response policies are part of a legal and sensible compensation structure that enables something for something.  What is that “something?”  A stable, reliable work force anchored by a stable, reliable income, ready, willing and able to work during a time of emergency (just when people need libraries most).

But such policies cannot be improvised, half-baked, or under-documented.

Armed with the information that properly effected and documented compensation during emergency closure or quarantine is not a violation of state law, if a public library doesn’t have an emergency closure policy or quarantine policy, and they want implement them now, a good approach is to gather the resources listed at the top of this answer, assess any pre-standing obligations your library has, and then adopt or refine some policies.

Here is a sample board resolution for a library that confirms it has no agreements or policies to the contrary and desires to set up maximum flexibility during this state of emergency:

WHEREAS on March 7, 2020, the Governor of the State of New York issues Executive Order 202 declaring a state disaster emergency; and

WHEREAS, as a result of the world-wide pandemic underlying the state disaster emergency, the library may need to close, reduce hours, or reduce staff reporting for duty; and

WHEREAS, the board has duly reviewed the public safety and budget considerations of reducing operations and continuing regular pay during the state of emergency; and

WHEREAS, the board recognizes that to best serve its area of service and protect the health of the community and its employees, employees may need to be directed to report to work at the library, to work remotely, or to be on-call but not report to work during routine hours; and

WHEREAS, the library is a community resource for critical information at this time, and must remain ready to respond to community needs as is within its capacity and budget;

BE IT RESOLVED that the board adopts the attached policies on “Quarantine Leave” and “Paid Leave During Emergency Closure;” and

BE IT FURTHER RESOLVED that the board shall continue to compensate full and part-time staff as allowed by law and provided by the policy for Quarantine Leave and Paid Leave During Emergency Closure between [DATE] and [DATE]; and

BE IT FURTHER RESOLVED that the library director and the [Executive Committee] of the board shall maintain ongoing communication and monitor the best approach to address safety and operational concerns, and shall inform the full board of same; and

BE IT FURTHER RESOLVED that the board shall reconvene on [DATE] to reconsider the continuation of compensation in light of what may be needed for the community and the library to recover from the state of emergency and return to normal operations.

 

CODA: A Note on Authority

What laws create a public library board’s authority to craft emergency response policies?

This starts with the basics. Education Law §259 required all moneys received "from taxes and other public sources" in the name of a library to be kept in a separate fund.[6]  And regardless of who is “holding the money,”  “the ultimate control of the use, disposition and expenditure of the library fund moneys is vested in the library board….” (1991 Opns St Comp No. 91-57, p 158) [emphasis added].

As the New York State Comptroller has stated repeatedly: public libraries are, for most purposes, fiscally autonomous from the sponsoring municipality (see Opn No. 91-57, supra; 1983 Opns St Comp No. 83-32, p 37; Buffalo Library v Erie County, 171 AD2d 369, 577 NYS2d 993 affd 80 NY2d 938, 591 NYS2d 131).

So even if a library’s sponsoring village, town, or city has a defined emergency closure policy that precludes paid time off for part-timers, the library can decide to adopt their own (that said, if the municipal policy is a good one, the library can choose to “borrow” it and go along for the ride…but should still specifically adopt the policy as its own).  As the Comptroller put it in opinion 1981 N.Y. 1981 N.Y. St. Comp. 485: “…it is the library board which determines the vacation and sick leave benefits for library employees. It is our opinion that a library board of trustees has implied authority to provide for sick leaves and vacations for library employees.”[7]

What reigns this in?  Compensation paid as part of any emergency closure or leave policy must be established, tracked, paid, and accounted for in a way that survives the scrutiny of an audit.  The terms must harmonize with the obligations of any relevant collective bargaining agreement.  And ideally, such an approach should bake in conditions to help the taxpayers see that compensated time out is in the best interests of the public.  That is not an easy array of requirements to meet.

But done right,[8] can emergency closure pay, or quarantine pay, for part-timers be “legal?”

Yes.

Author bio:  Stephanie Adams provides the “Ask the Lawyer” service to the library councils of New York.  For over 10 years she was in-house counsel for Niagara University, where she was (among other things) a member of the University’s pandemic response team.

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[1] One elegant policy I found was simply “If the Library closes because of extreme weather conditions or emergency conditions, employees scheduled to work will be credited with time as if worked. Previous time off requests supercede any credited time.”  Go Geneva Public Library!

[2] https://www.governor.ny.gov/news/during-novel-coronavirus-briefing-governor-cuomo-announces-new-york-state-will-contract-28

[3] https://cseany.org/coronavirus-information

[4] “Collective Bargaining Agreement”

[5] It is the section that, along with many other things, bars libraries throwing extravagant parties for library volunteers.

[6] (1986 Opns St Comp No. 86-54, p 86),

[7] The Comptroller cited some more authority there: “see Opn No. 80-199, supra; 1961 Atty Gen [Inf Opns] 105; Education Law, §§ 226(7), 260).”

[8] “Done right” means: consistent with your library’s bylaws, collective bargaining agreement, and employee manual, with particular attention to consistent and compliant use of the full-time and part-time categories, and FLSA status.

 

Wow, what a great question: what is the hierarchy of laws impacting the employment conditions of librarians?

The laws impacting the employment conditions of librarians are a complex logic tree with many branches.  When I consider the amount of laws, and the permutations….

Just…wow.[1]

For a lawyer practicing in both library and employment law, this question is the equivalent of someone handing a librarian a huge box of materials while asking: “Can you catalog these, then use them in a ‘Library Employee Rights’ display for the lobby?”

I can’t wait to curate the display, but first, let’s take a look at what’s in the “library employment law” box.  We’ll take them in rough order of hierarchy/priority.

The first item in the box is a huge, grubby tome that lawyers, even younger ones, use every day (if they are at a firm owned by a crusty Gen X lawyer[2]): Black’s Law Dictionary. 

A legal dictionary is in the collection because, although no lawyer would ever litigate an employment law matter based solely on a dictionary definition, legal concerns often turn on precise word meaning, and employment law certainly does.  In fact, there are at least three different legal definitions of the word “employee” that apply to library-related issues.[3]

The second is not a book, but a collection of CD’s containing a huge database.  What’s on the database?  It’s the “common law”—a body of case law and rulings that can influence how black-letter laws[4] work together.  The “common law” is a body of shared language and precedent that can influence (sometimes heavily) legal decisions.  It is often the glue that holds legal decisions together.

And now, for a few volumes that are far less esoteric:

The Fair Labor Standards Act (“FLSA”): Among many other things, this is the law governing who must be paid overtime when they work more than 40 hours in the standard work-week.

Federal Civil Rights Laws: This is a compendium of laws governing rights protecting people under the jurisdiction of the USA from discrimination.  It includes the Civil Rights Act and the Americans With Disabilities Act. 

The New York Human Rights Law: This is a compendium of laws governing rights protecting people from discrimination in New York.  It includes protections on the basis of religion, sexual orientation, gender expression, prior conviction and pre-disposing genetic characteristics (among many other things).  It is why your library recently adopted a sexual harassment report form.[5]

New York Labor Law & Regulations: Among many other things, this is the law that mandates one unpaid break every six hours for certain hourly employees.

New York Civil Service Law: Among many other things, this is the law governing the hiring, advancement, compensation scale, discipline, and termination of most public library employees.

Federal Laws Governing Benefits: This is a compendium of laws governing employee benefits in the USA.  It includes a law called ERISA, and the Affordable Care Act.

The New York Laws Governing Employee Benefits and Protections: This is a compendium of laws controlling unemployment insurance, workers’ compensation for work-related injury, insurance for non-work-related injury, retirement benefits, and most recently, the Paid Family Medical Leave Act.

New York Education Law & Regulations/New York Not-for-Profit Corporation Law: These laws are combined in one handy volume to create the rights and duties of a chartered library, and its governing board (who, within a framework of laws, are the ultimate decision-makers regarding employment at their library).

Local Civil Service Rules:  Based on New York’s “Municipal Home Rule Law,” many of the details of Civil Service-controlled employment practices can change from county to county (and municipality to municipality).

Local laws: Some municipalities adopt local law to create further protections for employees.  These laws cannot be contrary to state, federal, and county law, but can expand employee rights further.

Random Authorities:  This book is a vivid graphic novel depicting numerous opinions by the Equal Employment Opportunity Commission (“EEOC”), the U.S. Department of Justice, the National Labor Relations Board, the New York State Comptroller, the New York Attorney General, the New York Committee on Open Government, and the New York Commissioner of Education, regarding matters impacting library employees.  One delightful example of this is an intricate decision by the State Comptroller about how much money could be spent on a party for volunteers.[6]

And finally, some really cool, custom works are in the box… 

A Choose-Your-Own-Adventure novel called A Journey Through Your Charter and Bylaws.

Why is this a choose-your-own-adventure?  Because while neither a charter nor bylaws can change the above-listed law, the “type” of library an institution is chartered as will impact if and how those laws apply.  And within the framework set by those laws and their application to your library, it is the board—whose composition and functions are controlled by the charter and bylaws—that is the ultimate party responsible for hiring and firing of employees, which sets the stage for all other employment-related actions.

A collection of scrolls labelled “Contracts.”  This could be as simple as a contract with an Executive Director or Book-keeper, or as complex as a “Collective Bargaining Agreement” with an employee union. It is important to note that while a contract can create a great many additional rights, it cannot be contrary to the Charter and Bylaws, nor any of the laws listed above (UNLESS there is not an “exception” in the law, allowing it to be altered by the terms of a collective bargaining agreement, and if your library type means they apply).

And finally, the most valuable part of the collection: a weird device, rather like a flour sifter, that says in big, bronze letters on its handle “IT DEPENDS.”  What does this screen do?

It tells you which laws apply to which libraries, in which order of priority, under which circumstances.[7]  When applied properly, this allows you to create…

Your Institution’s Employee Policies, drafted to comply with the law as it applies to your library, and to support your unique charter and mission.  Such policies should be routinely re-assessed to ensure continued legal compliance and support for your library’s key objectives (like attracting, retaining, and developing the best staff possible).

In other words—and in direct response to part of the member’s question—the purpose of policy is to articulate and apply the law as it governs your library.  No policy should ever contain a provision contrary to a governing law or regulation.  This is why policy must be routinely assessed, revised, and updated.

And that’s the collection.

At this point, I imagine the member who asked this question might be feeling: Whoa, information overload!

Let me show you my display, here….

You probably thought it was going to be a tree, right?  Nope.  It’s a finely balanced array of media stacked to look like librarian assembling a sculpture of…a librarian. 

Why is that?

No other entity created by law(s) has the type of support, mandates, restrictions, and—yes—latitude under the law that libraries do.  Yes, libraries operate with a strict framework created by the laws and regulations listed above,[8] and operate within exacting mandates…but within that framework, libraries have almost limitless discretion with policies.  That is how they function and evolve as reflections of their communities. 

That said, certain things fundamental, and cannot be trumped by much.  Here are a few (with links to the laws that back them up):

• In New York, librarians must get an unpaid half-hour break every six hours; https://www.labor.ny.gov/workerprotection/laborstandards/employer/meals.shtm
• Even if considered employees of their sponsoring municipality (which is often, at a bare minimum, debatable!), most librarians paid an hourly wage are entitled to protection under the FLSA; https://www.dol.gov/whd/regs/compliance/whdfs7.pdf
• In New York, unpaid volunteers may not replace or augment paid staff; https://www.labor.ny.gov/workerprotection/laborstandards/PDFs/FAQs_NonProfit_and_State2016.pdf
• In New York, any employee reporting or supporting a concern about sexual harassment is protected from retaliation;

 https://www.ny.gov/combating-sexual-harassment-workplace/workers

• In New York, public library employees serve at the pleasure of their boards, NOT their sponsoring municipality;

https://www.nysenate.gov/legislation/laws/NPC/202

• In New York, public library employees may be indemnified[9] by their governing boards;

https://www.osc.state.ny.us/legal/2001/op2001-12.htm

• In New York, association library employees may be indemnified by their governing boards;

https://www.nysenate.gov/legislation/laws/NPC/202

• And…while it can be rather a pain to work within, public library employees are protected by the New York Civil Service law:

https://www.nyla.org/a-librarians-guide-to-civil-service-in-nys-2018/[10]

 

How does this play out?

Let’s take breaktimes as an example.

In New York, employees have to take a break every six hours.  It’s the law.  In my office, when a paralegal gets so into the project they don’t want to stop, I have to order them[11] to take a break.  (at which point they do, because otherwise…irony).

Now, how I choose to support my employees as they take their break is up to me, and may become a matter of policy.  Do I supply a break room?  Do I have a fridge and a policy/procedure for keeping the break room clean and the fridge free of mold?  All of those things are discretionary—and to govern the details, I might have a policy that goes beyond the minimum.  But here is where things get complicated: If an employee doesn’t follow the policy, I may need to follow rules set by Civil Service to discipline them. But if I am selectively enforcing the policy in a discriminatory way, state or federal civil rights law could govern. Or perhaps the employee will first file a union grievance, which we’ll have to arbitrate…

And that is the hierarchy of employment law.  It’s not really a heirarchy…it’s more of a fractal pattern.  The good news is, library leadership gets some say in the pattern.

What shape does your library pick?

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[1] If I were the sort to write via emoji, I would be using the icon for “Mind.  Blown.”

[2] That’s me.

[3] There is a definition for purposes of liability, a definition for purposes of compensation, and a definition for purposes of copyright ownership of employee work product.  And yes, they are all slightly different.

[4] “Black letter” laws are those “embodied in…statutes.”  Thanks, Black’s Law Dictionary! (Centennial Edition)

[5] Due to changes in 2018.

[6] This opinion is here: https://www.osc.state.ny.us/legal/1990/legalop/op90-63.htm.  The final decision?  “A public library may sponsor a recognition dinner for volunteer library workers, but may not sponsor a party for the senior citizens of the sponsor municipality or school district..

[7] This “screen” is either a lawyer, an HR professional, a civil service professional, or a library system or council working with one of those to support your unique operations.

[8] And more….so many, many more…

[9] In layman’s terms, this means you are protected in the event you are sued for just doing your job.

[10] I was lucky enough to attend an excellent presentation by authors of this Guide at the 2019 NYLA Conference. 

[11] My team is great!  Every employer should have this problem.

The answer is: it depends. 

Let’s start with the fundamentals:

FIRST:  Copyright vests the moment an original work is fixed in a “tangible medium of expression.”  Trademark is established through either registration or use on the marketplace.  Patent can protect useful articles and unique business operations.  Trade secret law can protect confidential  information that gives your institution a unique edge.   What does this mean?  It means that the e-mails, presentations, displays, unique business solutions, archive collections and other valuable work-product generated by library staff are all assets that can be owned.

SECOND:  Unless there is a contract, policy, or other express documentation to the contrary, an employer owns the copyright to any work produced by an employee as part of the scope of their employment (this is one of the reasons why it is always important to ensure staff have updated job descriptions).  For trademark, patent, and trade secret, similar rules may apply.  Be warned…if not set out clearly, this “express documentation” can take many forms: it can be buried in a union contract, can be inferred from a hire letter, or might even be derived from a habitual business practice.  For both the library and its employees, there should be a clear policy.

THIRD:  Not only copyright, trademark, patent, and trade secret law governs the control of employee work-product.  The ethics of the profession may influence ownership.  If your library serves a particular industry, like education or healthcare, the work-product is controlled by privacy regulations.    It is important that the initial ownership arrangement between the library and its employees consider the other terms that may govern the work product, and it is critical that any policy reinforce the obligation to safeguard certain information. 

So how does a library set up to ensure it owns the valuable work product it pays its staff to produce, but doesn’t encroach on the employees’ right to generate their own intellectual property when not at work?  As more and more people “work from home,” use their own laptops, and may even compose work product on their cell phones, it couldn’t be more important to observe the following:

A carefully considered policy on employee work product.  This policy should be harmonized with the ethics and mission of the institution, its policy on employee use of technology, and its regulatory compliance obligations.  This does not have to be extensive; just a few clear, concise paragraphs in the Employee Handbook. 

Clear hire letters and routinely updated job descriptions.   Remember, in order to determine if something was created as part of an employee’s “scope of employment,” both parties need a clear notion of what that employment is!

Routine copyright, trademark, and patent registration of critical employee-generated IP. If your archives are known for a particularly good compilation of old photographs, for example, consider registration of the compilation with the Library of Congress (even if the images already have their own unique registration).  If you gave the compilation a unique name, consider trademarking it.  If your library developed a unique way to search the archive, explore a patent (before disclosing it to any other party!).

And if the asset is not only employer-owned, but critical, make the necessary archive and recovery copies, and make sure that back-up is controlled by the employer (locked cabinet, separate hard drive, employer-licensed cloud service). 

What can an employee or institution do if there is confusion regarding an employee-generated asset?  The best option is to promptly consult a lawyer.  Remember…what people do and say during the initial phase of a dispute can later become evidence, while timely input can hopefully avoid unnecessary debate, and find a “win-win.” That said, there is no replacement for clear hire terms, current policies, and routine IP asset management.  Staff and the great work they generate are critical assets of libraries and archives, so clarity is definitely worth the effort!